Hunter Sports Shooting Grounds, Inc. v. Foley

• Decision Date: 27 August 2014
• Citation: 992 N.Y.S.2d 285,2014 N.Y. Slip Op. 05952,120 A.D.3d 759
• Parties: HUNTER SPORTS SHOOTING GROUNDS, INC., appellant-respondent, v. Brian X. FOLEY, et al., respondents-appellants, County of Suffolk, etc., appellant-respondent.
• Court: New York Supreme Court — Appellate Division

120 A.D.3d 759

992 N.Y.S.2d 285

2014 N.Y. Slip Op. 05952

HUNTER SPORTS SHOOTING GROUNDS, INC., appellant-respondent,

v. Brian X. FOLEY, et al., respondents-appellants,County of Suffolk, etc., appellant-respondent.

Supreme Court, Appellate Division, Second Department, New York.

Aug. 27, 2014.

Andrew L. Crabtree, Melville, N.Y. (Dara M. Hartman of counsel), for appellant-respondent Hunter Sports Shooting Grounds, Inc.

Dennis M. Brown, County Attorney, Hauppauge, N.Y. (John R. Petrowski of counsel), for appellant-respondent County of Suffolk.

Meyer, Suozzi, English & Klein, P.C., Garden City, N.Y. (Paul F. Millus of counsel), for respondents-appellants.

WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, PLUMMER E. LOTT, and SHERI S. ROMAN, JJ.

In an action, inter alia, for a judgment declaring that the actions of the Town Board of the Town of Brookhaven in enforcing a Town of Brookhaven noise ordinance against the plaintiff are unconstitutional, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Farneti, J.), dated June 21, 2012, as denied its cross motion for summary judgment on the first, second, third, and sixth causes of action, the defendant County of Suffolk separately appeals, as limited by its brief, from so much of the same order as denied its cross motion for summary judgment in favor of the plaintiff on the first, fifth, and sixth causes of action, and the defendants Brian X. Foley, Steve Fiore–Rosenfeld, Kevin T. McCarrick, Kathleen Walsh, Connie Kepert, Carol Bissonette, and Timothy P. Mazzei, constituting the Town Board of the Town Brookhaven, cross-appeal, as limited by their brief, from so much of the same order as denied their motion for summary judgment dismissing so much of the complaint as alleged that the noise ordinance was unlawfully and improperly applied to the plaintiff.

ORDERED that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

According to the complaint, since 1963, various licensees have operated a trap and skeet shooting range on certain real property located within the Town of Brookhaven and owned by the County of Suffolk. In 1987, the Town enacted a noise ordinance which, inter alia, authorized the imposition of fines upon entities that emit sound in excess of 65 decibels. In 2006, the plaintiff began operating the trap and skeet shooting range. In November and December 2006, the Town commenced a series of proceedings in the Sixth District Court, Suffolk County, alleging that the plaintiff was in violation of the Town's noise ordinance.

The plaintiff commenced this action in the Supreme Court, Suffolk County, against the members of the Town Board of the Town of Brookhaven (hereinafter the Town), inter alia, for a judgment declaring that the Town's actions in enforcing the noise ordinance against it were unconstitutional, and that the noise ordinance was unlawfully and improperly applied to the plaintiff. In a prior order, the Supreme Court directed that the County be joined as a necessary party. The plaintiff subsequently filed an amended complaint that named the County as an additional defendant, but did not assert any causes of action against the County.

The Supreme Court properly denied the Town's motion for summary judgment dismissing so much of the complaint as alleged that the noise ordinance was unlawfully and improperly applied to the plaintiff. In a prior order dated October 6, 2011, the Supreme Court denied that branch of the Town's prior motion which was for summary judgment dismissing so much of the complaint as alleged that the noise ordinance was unlawfully and improperly applied to the plaintiff “without prejudice to timely renewal, upon submission of proper papers.” In the prior order, the Supreme Court explained that the Town failed to present evidence in admissible form establishing the level of sound emitted by the plaintiff's operation, as the affidavit of its expert, Eric Zwerling, which was made and notarized in the State of New Jersey, lacked the required certificate of conformity ( seeCPLR 2309[c]; PRA III, LLC v. Gonzalez, 54 A.D.3d 917, 918, 864 N.Y.S.2d 140), and a report of the Noise Consultancy, LLC, was without probative value because it was unsworn and uncertified ( see Duke v. Saurelis, 41 A.D.3d 770, 771, 840 N.Y.S.2d 88). Instead of correcting the defects in its supporting papers and moving to renew its prior motion, the Town made a ...